Township of Andover, NJ
Sussex County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Township Committee of the Township of Andover 10-28-1975 (Ch. XVI of the 1973 Code), readopted 9-12-1984 by Ord. No. 84-25; amended in its entirety 6-12-2002 by Ord. No. 2002-14. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
General penalty — See Ch. 1, Art. II.
Building construction  — See Ch. 30.
Flood damage prevention — See Ch. 55.
Site plan review — See Ch. 131.
Soil erosion  — See Ch. 136.
Stormwater management — See Ch. 150.

§ 140-1 Findings.

A. 
The Township Committee finds and determines that the unregulated and uncontrolled excavation and removal and relocation of soil on a large scale, or for sale or use other than on an individual tax lot, has or may result in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the efforts of the Township to effectuate the general purpose of municipal planning.
B. 
The Township finds and determines that the removal of rocks, boulders, and the destruction of rock ledges and rock formations is a direct threat to the environment.

§ 140-2 Title.

This chapter shall be known and may be cited as the “Andover Township Soil and Rock Removal Chapter.”

§ 140-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
APPROVED PLAN
A plan for soil and rock removal approved by the Planning Board as a conditional use and by the Township Committee pursuant to the provisions of this chapter, or, in the case of nonconforming uses, by the Planning Board and Township Committee pursuant to the provisions of this chapter.
ARABLE SOIL
Soil that when dry contains not less than 4% by weight of organic matter and the balance of which is mineral matter.
MULCHING
The application of plant residue or other suitable materials to the land surface to conserve moisture, hold soil in place, and aid in establishing plant cover.
PERMIT
A certificate issued to perform work under this chapter.
ROCK
Any consolidated material of any size on or below the ground surface to include ledge rock, cliffs, and any other natural formation.
SOIL
All unconsolidated mineral and organic matter of any origin.
TOPSOIL
The arable soil within eight inches of the surface.

§ 140-4 Permit required.

A. 
No person or entity shall disturb or remove any rock, soil, sand, gravel or other natural rock or stone for sale or use, or otherwise remove, store or stockpile the same for sale or use on any given tax lot, unless a soil and rock removal permit has been first obtained, as herein set forth.
B. 
However, the provisions of this chapter shall not apply to the removal of soil, sand, gravel or other natural deposit, stone or rock if:
(1) 
The amount of said removal is 50 cubic yards or less; or
(2) 
The removal is associated with and incidental to the excavation required for the construction of a single-family dwelling and associated lawns, driveways, accessory buildings, patios, retaining walls, on a single lot in accordance with the building permits issued by the Construction Official and if said removal is 50 cubic yards or less; or
(3) 
The removal is associated with the excavation required for the construction of an in-ground or aboveground swimming pool; or
(4) 
The removal is associated with the excavation required for the construction or reconstruction of individual sewage disposal systems in accordance with permits issued by the Board of Health; or
(5) 
The removal is limited to a disturbed area of not more than five acres and is associated with, and incidental to, the construction of an approved site plan, if the material removed is utilized as fill material on the subject property, or the amount removed from the site does not exceed twice the volume of the material displaced by the building foundation or foundations; or
(6) 
The removal is associated with and necessary for the reconstruction and/or construction of roads, drainage systems, sanitary sewers, flood control measures, or other improvements, approved on the subdivision plat by reviewing municipal body, or undertaken by any governmental agency; or
(7) 
The removal is associated with and incidental to the regrading of the yard on an existing developed single lot for the purposes of making or installing drainage improvements, driveways or other necessary improvements, and the removal is less than 50 cubic yards.
(8) 
The removal is solely that of a peat harvesting operation, after classification of same by the Township Planning Board.
C. 
No application for a soil and rock permit shall be made, pursuant to this chapter, unless a conditional use permit has been obtained from the Planning Board. The Township Committee shall be the issuing authority for the soil and rock removal permit.

§ 140-5 Application requirements.

Three copies of an application to the appropriate Township body for a conditional use permit, shall be accompanied by:
A. 
Eight certified and sealed copies of the map prepared by a licensed professional engineer and licensed land surveyor.
B. 
An aerial photograph of the site.
C. 
Proposed contour lines at two-foot intervals after removal of the soil.
D. 
All existing structures on the subject premises and within 200 feet thereof.
E. 
All existing roads and drainage on the subject premises and within 200 feet of the property.
F. 
Location of topsoil storage areas.
G. 
Methods of controlling silting of downstream properties.
H. 
The elevation of the seasonal high-water table, if it is within eight feet of the proposed contour, or certification by the applicant's duly licensed professional engineer that the seasonal high-water table is not within eight feet of the proposed contour.
(1) 
The determination of the elevation of the seasonal high-water table shall be made by one of the following methods:
(a) 
Test pits with a backhoe.
(b) 
Probes or soundings.
(c) 
Geophysical tools.
(d) 
Rotary drilling.
(e) 
Continuous flight auger drilling.
(2) 
A three-hundred-foot grid pattern shall be used in determining the seasonal high-water table with a minimum of four locations for a five-acre tract. The applicant shall notify the Township Engineer at least seven days in advance of conducting the tests to determine the water table, and the Township Engineer, or his representative, shall be present and witness the tests when conducted. The certification of the applicant's engineer shall read as follows: "I hereby certify that the seasonal high-water table is (or is not) within eight feet of the proposed final contour as shown on this map." The engineer's certification shall also include the names and addresses of the persons witnessing the tests utilized to determine the seasonal high-water table, the dates that the tests were taken and the test methods utilized. A log of the materials found in the test holes or pits also shall be included on the plan.
I. 
The map submitted by applicant showing proposed contours shall divide the property from which the soil is to be removed into five-acre sections. The applicant shall indicate on the map the numerical sequence in which the sections are to be worked. Not more than one section shall be worked at any one time pursuant to § 140-10K herein.
J. 
All existing trees, 2 1/2 inches in diameter, measured 4 1/2 feet from the ground level, and the plan for replacing the same number of trees with trees having a diameter of 2 1/2 inches measured 4 1/2 feet from the top of root level.
K. 
The application shall also indicate the total number of cubic yards to be removed and the length of time within which the proposed operation shall be completed, which shall normally not be for longer than five years. Where a total project is not capable of being completed within five years, it shall be broken down into two sections, one of which shall be completed within five years and the other within such further period not exceeding five years as the appropriate Township body may determine.
L. 
All of the requirements of the Township ordinances governing site plan review shall apply to soil and rock removal applications, and a site plan application shall be filed with the soil removal application, and all of the requirements of the site plan including the fee provisions shall be complied with.
M. 
If the Planning Board determines that additional information is required to decide the application, outside of the requirements for a complete application, the Board shall have the power to require such additional information not specified in the chapter, or any revisions in the accompanying documents, which are reasonably necessary in order to make the ultimate decision on the issue of approval of the application.

§ 140-6 Factors considered in approving permits.

A. 
In considering and reviewing the application and arriving at its decision, the Zoning Board of Adjustment or Planning Board shall be guided by and take into consideration the public health, safety and general welfare and the general purposes of land use control, and particular consideration shall be given to the following factors:
(1) 
Soil erosion by water and wind.
(2) 
Surface water drainage.
(3) 
Soil fertility.
(4) 
Lateral support of abutting streets and lands.
(5) 
Public health and safety.
(6) 
Land values and uses.
(7) 
Contours both existing and proposed.
(8) 
Existing contours and topographic character of the land prior to the removal of any soil or rock and the proposed contours which shall result subsequent to the removal of soil or rock in accordance with the soil removal application.
(9) 
Whether the proposed removal of soil or rock is necessary and incidental to the development of the property for its intended use or whether the proposed removal constitutes primarily a commercial activity.
(10) 
Effects of tree removal.
(11) 
Effects on water resources such as streams and wetlands.
B. 
In the event that, after considering and reviewing the application, the resultant effect would be a creation of a lake, pond, hole, pit or similar type of depression and further that the nature of the operation would be a wet-mining operation then, and in that event, in addition to the above-referred-to factors and these factors alone, such may be sufficient basis for the denial for the permit.
C. 
The applicant shall obtain a valid land disturbance permit, issued in accordance with Chapter 136, Soil Erosion, before a soil or rock removal permit may be issued.

§ 140-7 Issuance of permit.

A permit shall be issued after approval of the application by the Township Committee. It shall show the total number of yards of soil or rock authorized to be removed, as calculated by the Township Engineer, based upon the contour maps submitted, and also the duration or terms of the permit based upon the applicant's estimate of the time necessary to completed the proposed operations, as provided for in § 140-6.

§ 140-8 Method and regulation of operation.

A. 
If a permit is issued for the removal of earth, rock, and soil as provided herein, the owner, or person in charge shall so conduct the operations that there shall be no sharp declivities, pits or depressions, and in such manner that the area shall be properly leveled off, cleared of debris, and graded to conform with the contour lines and grades as required and shown on the approved plan.
B. 
No soil or rock shall be removed nor shall any operation be conducted so as to violate any of the regulations contained in this chapter.

§ 140-9 Arable soil.

A. 
Arable soil within eight inches of the surface shall not be removed from the licensed owner's premises, but promptly, on completion of operations, the arable soil so retained shall be respread on the surface as uniformly as possible to a minimum depth of six inches, and seeded with winter rye or other suitable planting and mulched, fertilized and tacked.
B. 
If the soil within eight inches of the top is not arable soil, arable soil to a minimum depth of six inches shall be spread thereon promptly when the operation is completed in each area. Provisions shall be made for adequate drainage after the topsoil is replaced.
C. 
No topsoil shall be removed from the Township.

§ 140-10 Regulations.

The following regulations shall be observed:
A. 
Deposits prohibited on adjoining property or public roads. Soil removed shall not be deposited, or in any way thrown or placed, upon adjoining property or public roads. Any soil or material resulting from any operation, accumulating on any adjoining property or public road, shall be removed therefrom immediately, upon notice by the Township Engineer to the permittee.
B. 
Access road. The petitioner shall construct a coarse gravel access road into the removal site to insure that trucks leaving the site will not track material onto the public road. Such access road shall be in accordance with the requirements of the Township Engineer.
C. 
Operations near streams or wetlands. All operations shall be conducted in strict accordance with the regulations of the Freshwater Wetlands Protection Act, N.J.A.C. 7:7A and Flood Hazard Area Control Act, N.J.A.C. 7:13. It is the responsibility of the applicant to obtain a letter of interpretation and/or any necessary permits from the New Jersey Department of Environmental Protection confirming the presence or absence of wetlands or wetlands transition areas and/or any necessary permits prior to an application for a permit to disturb or remove rock or soil.
D. 
Nuisances or hazards. The operation shall be conducted so as not to constitute a nuisance to adjoining owners or the Township, and in no event shall the operation create any extra hazardous or unsafe condition, with regards to any person or persons.
E. 
Clearance of area. Upon completion of an operation or of excavation from an area delineated on the approved plan, the area shall be properly cleared of debris, graded to conform to the contours and grades, and trees planted, in accordance with the approved plan. A final map shall be submitted containing and complying with all requirements as set forth in this section. This work shall be included as part of the bond required under § 140-12.
F. 
Requirement of approved plan. Soil or rock shall not be removed, except in accordance with the approved plan, which plan may, upon application, be amended from time to time by the reviewing board.
G. 
Water table and grade level restrictions. No soil or rock shall be removed which is within eight feet of the water table, unless approved by the reviewing board, and no soil or rock shall be removed which is below the grade established and shown on the approved map.
H. 
Garbage; pollution; safety hazards. No trash, garbage, junk or debris shall be stored in any permit area, and no safety hazards shall be permitted, either during or after the completion of operations. There shall be no burning of combustible debris resulting from the soil operation.
I. 
Inspection. The applicant shall permit the inspection of the operation, at any reasonable time, by officers of the Township designated to perform such inspections.
J. 
Progress report. Each permittee shall annually furnish a progress report to the Township Engineer, the first of which shall be submitted nine months after issuance of the permit, which shall consist of a sketch map at a scale of one inch to 100 feet showing contours every two feet, retained arable soil, equipment, the areas where soil was removed, the location of water supply, and disposal facilities, and drainage facilities prepared and certified by a licensed professional engineer. All topography shall be made by aerial photographic methods and a photograph submitted with the original application and each progress report.
K. 
Soil removal limited to five-acre sections. In order to minimize the possibility of mud slides or drainage of silt, and for safety purposes, the area of operations for excavation shall be limited to one five-acre section as shown on applicant's soil or rock removal map, at any one time. The applicant shall fence and keep locked the five-acre section currently the subject of soil removal operations. The applicant shall not commence soil or rock removal upon a succeeding five-acre section without the replacement of topsoil and reseeding and replanting of the previous five-acre section. The applicant shall notify the Township Engineer before commencing soil removal operations on each new five-acre section. Each succeeding five-acre section shall be fenced and locked before soil removal operations are commenced thereon.
L. 
Respreading and reseeding of arable soil. Upon the completion of work in any specific area, all respreading of arable soil and reseeding as required by this section and § 140-9 of this chapter shall be completed within 60 days thereafter; except that, if the completion of work in an area occurs during the winter months when it would not be practical to respread the topsoil and reseed it, the work shall be completed within the additional time as maybe specified by the Township Engineer.
M. 
Exception from regulations. In any action taken by the reviewing board with regard to this section of the Township ordinances, the board shall give primary consideration to the rules, regulations and standards herein set forth, in order to promote the general welfare of the entire community. If, however, the applicant can clearly demonstrate, because of peculiar conditions pertaining to his land, that literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the Planning Board may grant exceptions from the requirements of such sections as may be reasonable within the general intent of this chapter. The Township body shall state its reasons for granting any such exceptions in resolution form.
N. 
Hours of operation. Hours of operation shall be limited from 8:00 a.m. to 6:00 p.m. Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays. There shall be no operation of any kind or character on Sundays or legal Township holidays.
O. 
Working face of excavation. While working an area, the working face of the excavation shall not exceed 85º from the horizontal, nor shall an angle of 85º have a vertical height exceeding 30 feet. Any face not currently being worked on shall not exceed 30º from the horizontal. A suitable fence shall be erected on three sides of the working face of the excavation in order to prevent persons from approaching such working face from the existing grade level. Where an excavated area adjoins a road, no excavation shall be made below the level of the road for a distance of 100 feet back from the center line of the road except in instances where, on the low side of the road, the removal of material would not substantially alter the general terrain characteristics. Where an excavated area is within 50 feet from any building, the finished grade thereof shall not exceed 10% or be less than 2%. Care should be taken so that there shall be no diversion of surface water either during the operation or after the project is complete.

§ 140-11 Application and inspection fees.

[Amended 4-13-2009 by Ord. No. 2009-11]
A. 
Upon application for a permit pursuant to the provisions of this chapter, the applicant shall pay a filing fee in the amount of $500.
B. 
In addition, at time of filing the application, to cover review by the Township Engineer, planning consultant and other Township personnel and site inspections, a deposit for review fees in the amount of $3,000 shall be deposited with the Township Clerk, by the applicant. Any unused portion shall be returned to the applicant.
C. 
The board shall have the right to required additional deposits to be paid by the applicant, from time to time, in order to insure that review and inspection fees are adequately provided for.
D. 
Upon issuance of a permit, the applicant shall pay another deposit in the sum of $2,000 to cover reasonable inspection fees to municipal personnel, including but not limited to the Township Engineer, for any inspections and field checks of the operation, and for inspections of improvements. Thereafter, the permittee shall reimburse the Township promptly for the cost of all periodic inspection fees as well as any extraordinary costs or expenses necessitated as a result of unforeseen difficulties or exigencies, or necessitated by or resulting from any violation of any provision of this chapter. Should the applicant fail to reimburse the Township for the aforesaid fees, within 14 days of a request by the Township to do so, the permit may be suspended or revoked for such a period of time as the Township Committee may determine.

§ 140-12 Bond required.

Before any work is done for which a permit is required, and during the period covered by the permit, the applicant shall file and maintain a bond in form and with surety approved by the Township Attorney in an amount deemed sufficient by the Township Committee on a recommendation of the Township Engineer, that shall be sufficient to insure the faithful performance of the work to be undertaken pursuant to the conditions of the permit and the terms thereof.

§ 140-13 Release from bond.

A. 
When all required performance has been completed, the obligor shall notify the Township Committee, in writing, by certified or registered mail, of the completion thereof and shall send a copy thereof to the Township Engineer.
B. 
The Township Committee shall authorize the Township Engineer to inspect the site to determine that all requirements of the approved plan have been complied with.
C. 
The Township Engineer shall thereupon file a report in writing with the Township Committee which shall be detailed and shall indicate either approval, partial approval or rejection.
D. 
If the work covered by the bond or performance guarantee, or any portion thereof, shall not be approved, or shall be rejected by the Township Engineer, the report shall contain a statement of reasons for such nonapproval or rejection. Where the rejection indicates partial approval of the improvements or works, it shall indicate the costs of the work for which approval is rejected.
E. 
The Township Committee shall accept or reject the work, grant partial approval, or withhold approval, on the basis of the report and shall notify the obligor in writing by certified or registered mail of the contents of the report and the action of the Township Committee with relation thereto, not later than 90 days after receipt of notice from the obligor of the completion of the work. Where partial approval is granted, the obligor shall be released from all liability pursuant to his performance guarantee bond except for that portion adequately sufficient to secure the work not yet approved.

§ 140-14 Revocation of permit.

After reasonable notice and an opportunity to be heard before the Township Committee, the permit of any person may be revoked or suspended for such period as the Township Committee may determine, for any violation of the terms hereof or the terms and conditions of any approved plan and permit granted hereunder.

§ 140-15 Traffic survey.

A. 
The Planning Board shall have the authority to require the applicant to conduct engineering studies and a traffic survey on the roads in the vicinity of the proposed soil and rock removal operation in order to determine if such roads are of sufficient strength to support the truck traffic to be emanating from the operation.
B. 
The traffic survey, if required, shall be made with counters and the average daily traffic shall be determined, all costs to be borne by the applicant.

§ 140-16 Off-tract improvements.

The Planning Board, in cases where it determines that off-tract improvements are necessitated or required because of the proposed soil and rock removal operation, shall have the authority to require the applicant to construct off-tract improvements in accordance with the provisions of § 159-15 et seq. of this Code.

§ 140-17 Jurisdiction.

The Township of Andover, pursuant to the within chapter and pursuant to the Code of the Township of Andover hereby retains jurisdiction over all soil and rock removal, mining and quarrying operations, including but not limited to the soil erosion and sediment control aspects. The purpose of this section is to make clear the fact that said jurisdiction has not been transferred to the Sussex County Soil Conservation District.